Citation Nr: 9827793
Decision Date: 09/17/98 Archive Date: 09/25/98
DOCKET NO. 96-16 556 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a lumbosacral spine
disability.
2. Entitlement to an increased rating for postoperative
fracture right ankle, with right calf atrophy and
degenerative changes, currently evaluated as 40 percent
disabling.
3. Entitlement to an increased rating for traumatic
arthritis, right knee, currently evaluated as 10 percent
disabling.
4. Entitlement to an increased rating for traumatic
arthritis, left knee, currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Acosta, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1974 to December
1978. He also had a prior period of three years and 24 days
of active duty, which has not been verified. This matter
comes before the Board of Veterans’ Appeals (Board) on appeal
from a rating decision of the Department of Veterans Affairs
(VA) Atlanta, Georgia, Regional Office (RO).
A personal hearing was held on October 7, 1997, in
Washington, D.C., before Jack W. Blasingame, who is a Member
of the Board and was designated by the Chairman to conduct
that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 &
Supp. 1997). A transcript of the hearing has been associated
with the file.
REMAND
The Member who conducted the personal hearing in Washington,
D.C. on October 7, 1997, is presently unable to participate
in deciding the appealed matters because of an extended
illness. Consequently, the veteran was informed, by letter
of June 24, 1998, that his appeal would be reassigned to
another member of the Board and that he had the right to have
another hearing before a member of the Board. He responded
by indicating that he wished to have a hearing before a
hearing officer at the RO. Accordingly, the appealed matters
are hereby being remanded to the RO for such action and for
the additional development described in the following
paragraphs.
An orthopedic examination of the veteran’s lumbosacral spine
should be conducted, in order to clarify which disabilities
of the lower back are currently manifested and whether either
one of them is causally related to service or secondary to
any of the musculoskeletal disabilities for which the veteran
already is service-connected. In this regard, it is noted
that a VA orthopedist indicated in July 1993, that the
veteran walked with a limp because of the lack of mobility of
the right ankle, which could be partially responsible for his
complaints of low back discomfort, and that the record
reveals objective findings of mild scoliosis with convexity
to the left (in September 1995) and mild degenerative joint
disease (in July 1996). Scoliosis, while generally of a
congenital nature and, therefore in those cases, not a
disability for VA purposes, pursuant to 38 C.F.R. § 4.9
(1997), can also be acquired, or caused by “different
factors.” See Guetti v. Derwinski, 3 Vet. App. 94, 95-96
(1992); Robie v. Derwinski, 1 Vet. App. 612, 613 (1991).
The Board is also of the opinion that the VA orthopedic
examination requested above should also include the veteran’s
knees, particularly due to the fact that the most recent
examination in the record was conducted more than five years
ago and the veteran has claimed that the current severity of
the disabilities of the knees is more severe than when he was
last examined. The report reflecting this examination should
include the examiner’s opinion as to the present nature and
extent of the disability of each knee, including objective
findings, for each knee separately, as to whether there is
instability, limitation of motion, any degree of favorable
and/or unfavorable ankylosis and any degree of functional
loss due to pain, weakness, fatigability and incoordination.
Thereafter, in re-adjudicating this claim, the RO should
consider and discuss any competent evidence of functional
loss of either knee, as per the criteria set forth in
38 C.F.R. §§ 4.40 and 4.45 (1997) and as required by the
United States Court of Veterans Appeals (Court) in DeLuca v.
Brown, 8 Vet. App. 202 (1995), as well as consideration of
assigning separate ratings for arthritis and instability of
each knee under Diagnostic Codes 5003 and 5257 of VA’s
Schedule for Rating Disabilities (the Schedule), pursuant to
VA’s General Counsel Opinion 23-97, VAOPGCPREC 23-97 (July 1,
1997). The VA orthopedic examination should also include the
veteran’s right ankle, in order to obtain De Luca-related
data from the examiner, and its re-adjudication should also
reflect the RO’s consideration and review of this additional
data.
Additionally, the Board believes that the RO needs to secure
copies of VA outpatient medical records produced since 1996
at VA’s Decatur, Georgia, Medical Center, as the veteran
stated at his personal hearing in October 1997 that he was
still undergoing medical treatment at that medical facility
for his musculoskeletal problems and that a VA orthopedist
told him, approximately between February and April 1997, that
his lower back problems were secondary to the service-
connected bilateral knee disabilities and that his right leg
was 7/8 of an inch shorter than the left one. This last
allegation, while not supported by the report of an October
1979 VA special orthopedic examination (according to which
the length of both legs was equal), should nevertheless be
verified on examination.
Accordingly, the case is REMANDED to the RO for the following
actions:
1. The RO should schedule the veteran
for a personal hearing before a hearing
officer at the RO hearing, to be
conducted at the earliest possible date.
A copy of the notification letter should
be associated with the veteran’s claims
folder.
2. All pertinent VA and private medical
treatment records subsequent to July
1996, to include VA outpatient medical
records from the Decatur, Georgia, VA
Medical Center, should be obtained and
associated with the claims file.
3. The RO should advise the veteran of
his obligation to cooperate with the
development of the appealed claims and
that the consequences for failure to
report for a VA examination without good
cause may include denial of the claim.
38 C.F.R. §§ 3.158, 3.655 (1997).
4. The RO should thereafter schedule the
veteran for a VA orthopedic examination
of his lumbosacral spine and lower
extremities, including the right ankle
and both knees. Again, the veteran must
be given adequate notice of the requested
examination, which includes sending the
notification letter to his most recent
address of record and advising the
veteran of the consequences of his
failure to report for a scheduled
examination. If he fails to report for
the examination, this fact should be
documented in the claims folder. Copies
of all notifications should be associated
with the claims folder.
5. The examiner, must be provided with a
copy of the claims folder prior to the
examination and a copy of this REMAND,
and be asked to review all the pertinent
evidence in the record. All pertinent
symptomatology and findings should be
reported in detail. Any indicated
diagnostic tests and studies should be
accomplished, to include x-rays. The
examiner is requested to provide the
following information:
A. A statement as to whether the
claims folder was reviewed prior to
the examination.
B. A thorough discussion of the
results of the x-rays (and
additional studies, if ordered) that
were ordered and obtained.
C. A list of all lumbosacral spine
disabilities that are currently
manifested.
D. Measurements of each leg’s
length and, if both figures are
different, an opinion as to whether
the difference is secondary to the
service-connected right ankle
disability or to any other service-
connected disability and, if it is,
whether it has caused any of the
diagnosed lumbosacral spine
disabilities.
E. An opinion as to the etiology of
each one of the lumbosacral spine
disabilities diagnosed (including
scoliosis, if diagnosed), i.e., an
opinion as to whether the diagnosed
lumbosacral disabilities are
causally related to service and/or
secondary to any of the service-
connected musculoskeletal
disabilities, to include the right
ankle and left pelvic ring
disabilities.
F. Measurements of each knee’s
flexion and extension, preferably
obtained with the help of a
goniometer.
G. For each knee, the orthopedist’s
opinion as to whether there is
recurrent subluxation or lateral
instability and, if there is such
impairment, its current severity
(i.e., whether it is slight,
moderate or severe in nature).
H. The actual degrees of active and
passive motion of each knee, as
compared with what are generally
considered normal active and passive
ranges of motion of the knee.
I. An opinion as to whether there
is objective evidence of any
limitation of the function of the
veteran’s right ankle and/or either
knee and a thorough description of
any such impairment.
J. An opinion as to whether there
is objective evidence of any pain,
weakened movement, excess
fatigability or incoordination on
movement of the veteran’s right
ankle and/or either knee. With
regard to any pain noted on motion,
the examiner should attempt to
determine at what point in the range
of motion the pain occurs and at
what point it prohibits further
motion.
K. An opinion as to whether there
is likely to be additional loss of
range of motion of the right ankle
and/or either knee due to any of the
following: (1) pain on use,
including during flare-ups; (2)
weakened movement; (3) excess
fatigability; or (4) incoordination.
L. An opinion as to whether pain
significantly and objectively limits
the functional ability of the
veteran’s right ankle and/or either
knee during flare-ups or when the
joint is used repeatedly.
M. An opinion as to whether either
one of the veteran’s knees currently
is ankylosed and, if it is, the
specific angle of the ankylosis and
whether it is favorable or
unfavorable.
N. An opinion regarding the
industrial impairment, if any,
caused by the service-connected
disabilities of the right ankle and
knees.
6. Following completion of all the
foregoing, the RO should review the
claims folder and ensure that all the
requested development has been fully
accomplished and that all actions in that
regard have been fully documented in the
record. If any development is found to
be incomplete, appropriate corrective
action should be implemented at once.
Specific attention is directed to the
examination report. If it does not
include adequate responses to the
specific opinions requested above, it
must be returned to the examiner for
corrective action.
7. After the above requested actions
have been completed, the RO should review
and re-adjudicate the claims hereby being
remanded, especially with regard to the
additional evidence obtained. In
accomplishing this task, the RO is
reminded to consider and discuss, as
appropriate: (a) the applicability of
the aforementioned VAOPGCPREC 23-97; (b)
the provisions of 38 C.F.R. §§ 4.40 and
4.45 (1997), as per the Court’s holding
in DeLuca; (c) the provisions of
38 C.F.R. § 4.26 (1997) pertaining to the
bilateral factor; and (d) the question of
whether increased ratings are warranted
on an extra-schedular basis, under the
provisions of 38 C.F.R. § 3.321(b)(1)
(1997), for the service-connected
disabilities of the right ankle and/or
both knees.
8. Thereafter, if any issue on appeal
remains denied, a supplemental statement
of the case should be provided to the
veteran and his representative. The
supplemental statement of the case should
address whether the veteran’s claims for
increased ratings should be submitted to
the Chief Benefits Director or the
Director, VA Compensation and Pension
Service for assignment of an
extraschedular rating under the
provisions of 38 C.F.R. § 3.321(b)(1)
(1997). After the veteran and his
representative have had an adequate
opportunity to respond, the appeal should
be returned to the Board for appellate
review.
The RO is advised that the Board is obligated by law to
ensure that the RO complies with its directives. The Court
has stated that compliance by the RO is neither optional nor
discretionary. Where the remand orders of the Board are not
complied with, the Board errs as a matter of law when it
fails to ensure compliance. Stegall v. West, No. 97-78 (U.S.
Vet.App. June 26, 1998). The above claims must be afforded
expeditious treatment by the RO. The law requires that all
claims that are remanded by the Board or by the Court for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans’ Benefits
Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1996)
(Historical and Statutory Notes). In addition, VBA’s
ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the
regional offices to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03. No action is
required by the veteran until he receives further notice;
however, he may present additional evidence or argument while
the case is in remand status at the RO. Cf. Quarles v.
Derwinski, 3 Vet. App. 129, 141 (1992).
JOY A. MCDONALD
Acting Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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